There is nothing in the Transcript showing whether a discharge was filed or not; but, assuming that there was none, the decree of distribution was made and filed, and the property distributed, and received by the distributees, and taken possession of by them, and the estate is as effectually closed as it could possibly be by a decree of discharge. The certificate of discharge, in this case, is merely a ministerial duty, and its effect in any case is merely a satisfaction of the decree of distribution. (Estate of Garraud , 36 Cal. 279.) After decree of distribution, the Probate Court has no jurisdiction of the property distributed, except to compel delivery. (Wheeler v. Bolton , 54 Cal., 302.) The mere fact that the note and mortgage has not been paid does not continue proceedings in the estate, as Peter Reitz waived his claim in the Probate Court, when he consented to a distribution subject to his mortgage, and he did lose some rights, for had the real estate been insufficient to pay the note and mortgage, he could have had no judgment for a deficiency against the estate, as it was closed. He had the rightand all the rights of a mortgagee, and no more, and his claim, as far as the Probate Court was concerned, was completely wiped out, and the statute of limitations commenced to run from the time the decree was entered, viz., February 7, 1871. ( Civil Code, § 2822; Kane v. Bloodgood, 7 John. Ch.)
JUDGES: McKinstry, J. Ross and McKee, JJ., concurred.
OPINION
McKINSTRY, Judge
Section 1697, of the Code of Civil Procedure, provides: " When the estate has been fully administered, and it is shown by the executor or administrator, by the production of satisfactory vouchers, that he has paid all sums of money due from him, and delivered up, under the order of the Court, all the property of the estate to the parties entitled, and performed all the acts lawfully required of him, the Court must make a judgment or decree discharging him from all liability to be incurred thereafter." Until the entry of such a decree " the trust still continues in contemplation of law, and the executor remains clothed with the duty and authority of his office." (McCrea v. Haraszthy , 51 Cal. 146, 151.) Until the entry of such a decree the estate is not settled. " No claim against any estate which has been presented and allowed is affected by the statute of limitations, pending the proceedings for the settlement of the estate." ( C. C. P., 1569.) This last clause is sweeping, and includes every claim " presented and allowed."
Judgment affirmed.